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2014 DIGILAW 1098 (HP)

Sat Pal v. Ram Prakash

2014-08-20

SURESHWAR THAKUR

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JUDGMENT : - Sureshwar Thakur, Judge The instant appeal has arisen out of the judgment and decree rendered by the learned first appellate Court whereby the learned first appellate Court while affirming the judgment and decree rendered by the learned trial Court in favour of the plaintiffs/respondents, dismissed the appeal preferred by the appellants/defendants. 2. The brief facts of the case are that the suit land bearing khasra Nos. 3040, 3041, 3042, 3043, measuring 0-42-44, hectares, as per Missal Hakiat Bandobast for the year 1987-88, situated in Village Jankaur, Tehsil and District Una, H.P., was in possession of their predecessor-in-interest Geeta Ram alias Geetu as non occupancy tenant on payment of rent under the owners for a long time and on the death of said Geeta Ram, the plaintiffs and their brother Chhottu defendant No.3, succeeded to his tenancy rights and they have become owners thereof by virtue of H.P. Tenancy and Land Reforms Act, 1972. During the settlement record prepared in 1987-88, defendant No.1 Sagli Ram was recorded as ‘patedar without any basis, against the factual position as the possession over the suit land was earlier of their father Geeta Ram and thereafter, with the plaintiffs and defendant No.3. It is further averred that the plaintiffs and defendant No.3 were illegally got recorded as Kabiz over the suit land under the ‘patedar’ defendant No.1 Sagli Ram. On the basis of said wrong revenue entry, the defendant No.1 has been threatening to take forcible possession of the suit land, as such, the plaintiffs filed the suit for grating them as a decree for declaration to the effect that they and proforma defendant No.3 Chhottu Ram are in possession of the suit land earlier as non-occupancy tenants and now as owners after the conferment of proprietary rights under the H.P. Tenancy and Land Reforms Act and that defendants Nos. 1 and 2 have no right, title or interest in the land and the alleged entry showing defendant No.1 in the revenue record as ‘Patedar’ is wrong, illegal, and not binding upon the rights of the plaintiffs and also the entry showing the plaintiffs and defendant No.3 as Kabizan is also illegal with consequential relief of permanent injunction restraining defendants No.1 and 2 from interfering in the suit land in any manner. In the alternative a decree for possession has been prayed that in case defendants No.1 and 2 succeeded in taking forcible possession form the plaintiff. 3. The suit of the plaintiff was resisted by the defendant No.1, Sagli Ram only. It is averred that in view of the findings in the earlier suit No.336/79, titled as Ram Parkash vs. Sagli Ram etc., which was dismissed as withdrawn on 29.12.1979, the present suit was barred under Section 12 of the Code of Civil Procedure. It is averred that the owners of the suit land had donated, it, to H.P. Bhoodan Yojna Board under the H.P. Bhoodan Yojna Act, 1954 and the owners had put the Board in possession and as such, the Board became the owner in possession of the suit land. It is pleaded that the Board then allotted the suit land in favour of defendant No.1 and he was put in possession thereof and he has been cultivating the same since then. The plaintiffs never raised any objection against the said donation by the owners in favour of the Board, nor against the allotment by the Board in favour of defendant No.1. As such, they have lost all rights in the suit land. The Settlement authorities have rightly shown him to be in possession of the suit land as ‘patedar’. It is also pleaded that the suit was barred and the civil court has no jurisdiction to try the suit under the H.P. Bhoodan Yojna Act, 1977. The plaintiffs had no cause of action to file the suit. 4. The plaintiff filed replication to the written statement of the defendant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiffs and defendant No.3 are in possession of the suit land earlier as non-occupancy tenants and now as owners, as alleged? OPP 2. Whether the plaintiffs have no locus standi to file the present suit? OPD 3. Whether the suit is barred u/s 12 of the C.P.C., as alleged? OPD 4. Whether the plaintiffs and defendant No.3 have lost all rights, title and interest in the suit land, as alleged? OPD 5. Relief. 6. OPP 2. Whether the plaintiffs have no locus standi to file the present suit? OPD 3. Whether the suit is barred u/s 12 of the C.P.C., as alleged? OPD 4. Whether the plaintiffs and defendant No.3 have lost all rights, title and interest in the suit land, as alleged? OPD 5. Relief. 6. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff. In appeal, preferred by the appellants/defendants before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court affirmed the findings, recorded by the learned trial Court and consequently, it affirmed the judgment and decree passed in favour of the plaintiffs by the learned trial Court. 7. Now the defendants/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 25.7.2002, this Court, admitted the appeal instituted by the defendant against the judgment and decree rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. Whether the suit laid by the plaintiffs was precluded under the provisions of Order 9 Rule 9 of the Code of Civil Procedure? 2. Whether the suit land by the plaintiffs was not maintainable without the PATTA in favour of the defendants having been challenged? Substantial Questions of Law No.1 and 2. 8. Since both the aforesaid extracted substantial questions of law are entwined, hence, they being interlinked, necessitate a cumulative decision. 9. Uncontrovertedly the suit land under mutation sanctioned on 21st May, 1976, came to be allotted in favour of one Sagli Ram, the predecessor-in-interest of the defendants/appellants in appeal. In consequence to the aforesaid mutation, bearing No. 1827, apposite entries came to be recorded in the jamabandi for the year 1971-72 qua the suit land. Prior to the allotment of the suit land in favour of the predecessor in interest of the defendants/appellants, the suit land was recorded in the ownership of Bhoodan Yojna Board. In consequence to the aforesaid mutation, bearing No. 1827, apposite entries came to be recorded in the jamabandi for the year 1971-72 qua the suit land. Prior to the allotment of the suit land in favour of the predecessor in interest of the defendants/appellants, the suit land was recorded in the ownership of Bhoodan Yojna Board. The effect of the allotment of the suit land made in favour of the predecessor in interest of the defendants/appellants would be repulsed, as well, as over come, in case it stood unflinchingly proved by cogent evidence on record that on allotment of the suit land in favour of the predecessor-in-interest of the defendants/appellants, one Gitu was divested of its possession. However, the entries in the Misal Hakiyat Istemal for the year 1964-65 divulge that the predecessor in interest of the plaintiff, One Gitu is recorded in its possessory column as a non occupancy tenant. The said entry continued uptill the jamabandi for the year 1981-82 qua the suit land. However, in the missal hakiyat bandobast for the year 1987-88, comprised in Ex. P-1, the plaintiffs were omitted to be reflected as non-occupancy tenant, rather, were reflected therein to be ‘kabizan’ over the suit land, whereas, the predecessor in interest of the defendants/appellants was recorded as a ‘patedar’ in the possessory column. Nonetheless, the said entry was concluded by the Deputy Commissioner, Una, in his order rendered in Ex.PD to wholly a fictitious entry, inasmuch, as it was not preceded by any valid order authorizing its recoding/reflection in the jamabandi for the year 1987-88 qua the suit land. In sequel, the recording of the predecessor in interest of the defendants/appellants as ‘patedar’ in the possessory column in the missal hakiyat bandobast, Ex. P-1, cannot countervail or overcome the effect of the plaintiffs having been previously recorded in the apposite jamabandi qua the suit land, as non occupancy tenants nor would the recording of an entry of ‘patedar’ in favour of the predecessor-in-interest of the defendants/appellants in the possessory column in the missal hakiyat bandobast, Ex. P-1, apposite to the suit land, render open any conclusion, that either the predecessor in interest of the defendants/appellants were dispossessed from the suit land or the plaintiffs/respondents, too came to lose possession of the suit land, in consequence to the allotment of the suit land in favour of the predecessor in interest of the defendants/appellants. P-1, apposite to the suit land, render open any conclusion, that either the predecessor in interest of the defendants/appellants were dispossessed from the suit land or the plaintiffs/respondents, too came to lose possession of the suit land, in consequence to the allotment of the suit land in favour of the predecessor in interest of the defendants/appellants. Even otherwise, when the orders rendered by the Deputy Commissioner, Una comprised in Ex.PD wherein he concluded that the entries recorded in the missal hakiyat bandobast for the year 1987-88, Ex. P-1, qua the suit land, whereby, the predecessor in interest of the defendants/appellants was reflected as ‘patedar’ in the possessory column and the plaintiffs/respondents were rather omitted to be recorded though previously reflected in the earlier jamabandis, as non-occupancy tenants, rather were recorded as ‘kabizan’, were fictitious and worthless entries, inasmuch, as they were not preceded by any valid order of the competent authority authorizing such reflections, as a corollary, when it has not been demonstrated by apt and cogent evidence that the order rendered by the Deputy Commissioner, Una comprised in Ex.PD nullifying the effect of the entries recorded in Ex.P1 to the above effect were assailed in the higher echelons in the hierarchy of revenue officers, as such, it has to be concluded to have attained finality. Consequently, it has to be firmly held that the entries recorded in the missal hakiyat bandobast for the year 1987-88, comprised in Ex. P-1 qua the suit land do not either effect or impinge upon the rights of the plaintiffs/respondents as non occupancy tenant nor such entries detract from the fact of theirs being in possession of the suit land. 10. Moreover, the factum of falsity acquired by the entries in the missal hakiyat bandobast for the year 1987-88 comprised in Ex.P1 also assumes finality, besides even if assumingly they have any validity, they too do not detract from the fact of the plaintiffs/respondents being in possession of the suit land, inasmuch, as (a) with the reflection in Ex.P-1 of the plaintiffs/respondents being ‘kabizan’ conveys their possession over the suit land, as such, the ensuing conclusion is that even in the face of Ex. P-1, which is the missal hakiyat bandobast qua the suit land for the year 1987-88, recording in its possessory column the fact of the predecessor-in-interest of the defendants/appellants to be a ‘patedar, yet with the aforesaid reflection of the plaintiffs/respondents to be ‘kabizan’ over the suit land is a loud communication of the fact that the plaintiffs/respondents never lost possession of the suit land, rather the suit land is in their physical possession and (b) there being an admission in the deposition of Sat Pal, DW-1, the son of Sagli Ram, of his predecessor-in-interest having in pursuance to the suit land allotted in his favour, qua which mutation was attested on 21.5.1976 never acquired its possession, hence, was led to file an application before the Deputy Commissioner, Una, for delivery of the possession of the suit land to him, besides also with an admission existing in the cross-examination of DW-2 of the predecessor-in-interest of the plaintiffs/respondents cultivating the suit land, too, bespeaks the fact of acquiescence of the successors-in-interest of Sagli Ram, in whose favour the suit land was allotted, of one Gitu cultivating the suit land at the time of its allotment in favour of their predecessor-in-interest and his continuing to cultivate the suit land, thereafter also, moreover, of all the plaintiffs/respondents also continuing to retain its possession. In aftermath, the result of the above discussion is that though the suit land was allotted to the predecessor-in-interest of the defendants/appellants, yet when neither the predecessor-in-interest of the defendants/appellants, as evidenced from the foregoing discussion acquired possession of the suit land, nor the defendants/appellants did, as a natural concomitant, then, the effect of allotment, if any, of the suit land in favour of the predecessor-in-interest of the defendants/appellants, is wholly effaced. Nor also it bars/prohibits or interdicts the plaintiffs/respondents who are the successors-in-interest of Gitu, who was recorded to be a non-occupancy tenant over/upon the suit land in successive jamabandis qua the suit land from 1964-65 till now, except missal hakiyat bandobast for the year 1987-88, Ex. P-1, effect whereof is negated by the aforesaid discussion. Nor also it bars/prohibits or interdicts the plaintiffs/respondents who are the successors-in-interest of Gitu, who was recorded to be a non-occupancy tenant over/upon the suit land in successive jamabandis qua the suit land from 1964-65 till now, except missal hakiyat bandobast for the year 1987-88, Ex. P-1, effect whereof is negated by the aforesaid discussion. Nonetheless, when the effect of the deletion of the entry of Gitu, the predecessor-in-interest of the plaintiffs/respondents as non occupancy tenant existing in the jamabandis prior to the year 1987-88 and its replacement by an entry of the plaintiffs/respondents being depicted as ‘kabizan’ over the suit land, stands nullified by the fact of the aforesaid replaced/substituted entry being pronounced in Ex. PD to be untenable while being fictitious, therefore, when as such, it is to be concluded that the plaintiff/respondents are as was their predecessor-in-interest, non-occupancy tenants over the suit land, besides as emanating from the aforesaid discussion, neither with their predecessor-in-interest nor now the plaintiffs/respondents having ever lost possession of the suit land. Consequently, they are, as such, entitled to automatic conferment of proprietary rights in consonance with the provisions of the Himachal Pradesh Tenancy Land Reforms Act, 1971 dehors allotment of suit land in favour of predecessor-in-interest of the defendants/appellants. 11. Though, it is argued by the learned counsel appearing for the defendants/appellants that one of the plaintiffs Ram Prakash had instituted a civil suit for injunction against the predecessor-in-interest of the defendants/appellants, yet when the said suit was dismissed as withdrawn without permission/liberty having been accorded to the said Ram Prakash to institute a fresh suit on the same cause of action, consequently, it is argued that the bar under Order 9, Rule 9, CPC interdicting the institution of a fresh suit at the instance of the plaintiffs on an analogous cause of action, ought to non suit the plaintiffs/respondents. However, the above contention is frail and is of no consequence in the face of the fact that the earlier suit was not intra parties, the parties at lis before this Court, nor it has been substantiated to be on an analogous cause of action as the instant suit, in which event alone, it could be concluded that in the face of the earlier suit by one of the plaintiffs instituted against the predecessor-in-interest of the defendants/appellants having come to be dismissed as withdrawn without liberty to one of the plaintiffs Ram Prakash to institute the instant suit, the extant suit is barred by the provisions of Order 9, Rule 9 of the CPC. Therefore, for lack of proof of analogity of cause of action or for lack of proof of the fact that in the earlier suit filed by one of the plaintiffs Ram Prakash, besides him the other plaintiffs/respondents were also co-plaintiffs along with him, besides when it has also not been demonstrated that Ram Prakash in the earlier suit was representing the interest of the co-plaintiffs in the instant suit, so as to render the previous judgment, Ex. D-1, of the dismissal of the suit of one of the plaintiff Ram Prakash as withdrawn to be binding upon the other co-plaintiffs as well. As a concomitant, then for lack of adduction of the evidence manifesting analogity of cause of action as well as analogity of parties in both the earlier as well as the instant suit, the bar as envisaged under Order 23, Rule 1 of the CPC against the institution of the instant suit at the instance of the plaintiffs when the earlier suit preferred by one of the co-plaintiffs Ram Prakash against the predecessor-in-interest of the defendants/appellants came to be dismissed as withdrawn without liberty to him to institute a fresh suit, is neither attractable nor invokable at the instance of the defendants/appellants. The pre-eminent fact which besides the aforesaid discussion which constrains this Court to conclude that the instant suit at the instance of the co-plaintiffs against the predecessor-in-interest of the defendants/appellants, is, maintainable, is, of the earlier suit being a simplicitor suit for injunction by one of the co-plaintiffs which came to be dismissed as withdrawn, on the strength of the statement of the counsel for the plaintiff Ram Prakash, no interference over the suit land having been caused by the predecessor-in-interest of the defendants/appellants. Obviously, it conveys the fact that, as such, the previously erupted cause of action stood abated then. However, when the relief of injunction is available to be invoked by the plaintiffs successively, when fresh interferences over the suit land occur and such interferences are complained of by the aggrieved plaintiff. Consequently, then with successive acts of invasion erupting and attributable to the predecessor-in-interest of the defendants/appellants and theirs threatening the rights of the plaintiffs/respondents over the suit land would not bar the institution of the instant suit by the plaintiffs/respondents against the predecessor-in-interest of the defendants/respondents, nor would render the instant suit instituted by the plaintiffs/respondents while complaining of fresh interferences over their rights in the suit land to be not maintainable. Nor when besides given the contradistinction in relief in the earlier suit and in the instant suit, inasmuch, as, in the earlier suit the relief of injunction was prayed for, whereas, the instant suit the reliefs both for declaration as well as for injunction, are claimed, too render the instant suit to be maintainable. Accordingly, both the substantial questions of law are answered against the defendants/appellants and in favour of the plaintiffs/respondents. 12. In view of above discussion, I find no merit in this appeal which is accordingly dismissed and the judgment and decree of the learned Courts below are affirmed. No order as to costs. Records be sent back forthwith.